NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 16, 2023
S23A0034. O’NEAL v. THE STATE.
ELLINGTON, Justice.
Ryan O’Neal was convicted of malice murder, possession of a
firearm during the commission of a felony, and other related crimes
in connection with the shooting death of Joseph Jackson.1 On
1 The crimes occurred on July 16, 2019. O’Neal was indicted by an Oconee
County grand jury in 2019 for charges related to the shooting death of Jackson.
That indictment was superseded when, on March 10, 2021, the Oconee County
grand jury issued a new indictment charging O’Neal, Akhemu Dunston, and
Dallas McCabe with malice murder (Count 1), felony murder (Counts 2, 3, and
4), criminal attempt to commit robbery by force (Count 5), criminal attempt to
commit a violation of the Georgia Controlled Substance Act (Count 6), and
aggravated assault with a deadly weapon (Count 7). O’Neal was solely charged
in the same indictment for possession of a firearm during the commission of a
felony (Count 8). By agreement of the parties, O’Neal was tried separately from
Dunston and McCabe. In April 2021, a jury found O’Neal guilty of malice
murder, one count of felony murder (Count 4), aggravated assault with a
deadly weapon, and possession of a firearm during the commission of a felony.
The jury found him not guilty of the other charges. On April 1, 2021, the trial
court sentenced O’Neal to serve life in prison for malice murder and a
consecutive five-year sentence for the firearm offense. Because the jury found
O’Neal guilty of malice murder, the felony murder charge was vacated by
operation of law, see Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479)
appeal, O’Neal contends that the evidence was insufficient to
support his murder conviction, the trial court erred by instructing
the jury on conspiracy and denying his request for an instruction on
voluntary manslaughter, and defense counsel provided ineffective
assistance by failing to object to a comment made by the prosecutor
during closing argument and failing to successfully defend against
the State’s request for a conspiracy instruction. He also asserts his
trial was fundamentally unfair because of the number of errors
made by the trial court. We conclude that the evidence was sufficient
to sustain O’Neal’s murder conviction; the trial court did not err by
instructing the jury on conspiracy because there was some evidence
to support the giving of that charge; the trial court did not err by
denying O’Neal’s request for a charge on voluntary manslaughter
because there was no evidence of provocation; O’Neal failed to
(1993), and the aggravated assault charge that formed the predicate for the
felony murder charge merged into the malice murder conviction as a matter of
fact for sentencing purposes. O’Neal filed a timely motion for a new trial on
April 12, 2021. Following a May 4, 2022 hearing, the trial court denied the
motion for a new trial, and O’Neal filed a timely notice of appeal. The case was
docketed in this Court to the term beginning in December 2022 and submitted
for a decision on the briefs.
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demonstrate that his trial counsel was deficient; and because there
is no merit in the errors alleged, O’Neal’s trial was not
fundamentally unfair.
Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed the following. On the day of the crimes,
Jackson, who lived with his grandparents, contacted Akhemu
Dunston and arranged via text to purchase marijuana. After
messaging with Jackson, Akhemu contacted Dallas McCabe via text
about participating in a robbery. O’Neal, Akhemu, Akhemu’s
brother Quentin Dunston, and McCabe drove to Jackson’s
neighborhood that evening to deliver the marijuana. During the
drug transaction, Akhemu, who was seated in the front passenger
seat next to the driver, McCabe, asked to borrow Jackson’s phone.
When Akhemu refused to return the phone, Jackson leaned into the
vehicle in an attempt to retrieve the phone, and McCabe drove away,
dragging Jackson along the road as he did so. As Jackson and
Akhemu struggled over the phone, O’Neal, who was sitting behind
Akhemu, fatally shot Jackson in the chest, shattering the rear
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passenger-side window and causing Jackson to fall to the ground.
Just before midnight, Jackson’s grandparents found him bloodied
but still alive outside their door. Jackson died the next morning.
Investigators searching near Jackson’s home after the shooting
found blood, shattered glass, and Jackson’s shirt and cell phone
approximately 100 yards from his house. Investigators ultimately
learned that just before he was shot, Jackson arranged to meet with
Akhemu at the end of Jackson’s driveway. Akhemu was detained by
police on a separate warrant, and after speaking with investigators,
he was arrested and charged with Jackson’s murder.
Following Akhemu’s arrest, investigators spoke with Quentin,
who admitted that he was in the car with O’Neal, Akhemu, and
McCabe when Jackson was shot. Quentin stated that he, O’Neal,
and the other men in the car stopped at Jackson’s house to sell
Jackson marijuana, and while there, Akhemu asked to use Jackson’s
phone and refused to give it back. He said that as Jackson was
holding onto the car trying to get his phone, O’Neal took a gun from
his bag and shot Jackson. Quentin stated that after the shooting,
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when he suggested they go to the police, O’Neal cocked the gun and
pointed it at Quentin. 2
O’Neal was arrested a few weeks after the shooting as he hid
in a closet in an apartment in Athens, Georgia. In the same closet,
police discovered a 9mm hand gun, ammunition, and a black fanny
pack. In his first statement to police, O’Neal admitted he was with
Akhemu and Quentin in the car driven by McCabe and that Jackson
was shot during an altercation between Jackson and Akhemu when
the 9mm hand gun in the fanny pack O’Neal was wearing
accidentally discharged. He also told investigators that he and the
other occupants of the car were “scared” when Jackson tried to get
his phone back. In a subsequent statement to police, O’Neal told
investigators that McCabe shot Jackson, and as McCabe drove
away, the gun fell into the back seat and into O’Neal’s fanny pack.
2 Quentin was originally charged with Jackson’s murder, but the charges
were dismissed because the State concluded there was insufficient evidence to
show Quentin was a party to the crimes. After Quentin told prosecutors he
would invoke his Fifth Amendment privileges if called to testify at O’Neal’s
trial, Quentin was granted immunity. At trial, Quentin refused to admit
Akhemu was trying to steal Jackson’s phone, and he told the jury that McCabe,
not O’Neal, shot Jackson.
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An examination of O’Neal’s cell phone and social media records
showed that O’Neal’s phone communicated with Akhemu’s and
Quentin’s phones before and after the shooting and communicated
with Akhemu’s phone multiple times after Akhemu set up the
meeting with Jackson. Phone records also showed that O’Neal’s
phone called McCabe’s phone several times after the shooting, when,
according to Quentin, Akhemu asked O’Neal to warn McCabe not to
drive his car because police were looking for a car with a broken
window. McCabe was arrested in Texas after his vehicle was
photographed by a license plate reader. The photo from the license
plate reader showed the rear-passenger window of McCabe’s car
covered with plastic.
The medical examiner testified that Jackson suffered from
abrasions over most of his body consistent with “road rash” and died
as the result of a single gunshot wound to his left arm and chest. A
GBI forensic firearms expert testified that the gun found in O’Neal’s
possession was the same gun used to shoot Jackson; the gun was in
good, working order and required 7.25 pounds of pressure to pull the
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trigger; and the gun was not fired from inside the fanny pack.
1. O’Neal asserts that the evidence presented at trial was not
sufficient to support his murder conviction. When evaluating the
sufficiency of the evidence as a matter of federal constitutional due
process, we view the evidence presented at trial in the light most
favorable to the prosecution and consider whether it was sufficient
to authorize a rational trier of fact to find the defendant guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979); Moore v. State, 311 Ga. 506, 508 (2) (858 SE2d
676) (2021). “This Court does not reweigh evidence or resolve
conflicts in testimony; instead, evidence is reviewed in a light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” (Citation and
punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d
313) (2013).
(a) O’Neal first contends that the State failed to prove that he
killed Jackson with malice aforethought or an intent to kill. “A
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person commits the offense of murder when he unlawfully and with
malice aforethought, either express or implied, causes the death of
another human being.” OCGA § 16-5-1 (a). “The State, of course,
must prove malice beyond a reasonable doubt to convict someone of
malice murder.” Benson v. State, 294 Ga. 618, 620 (1) (754 SE2d 23)
(2014). “Express malice is that deliberate intention unlawfully to
take the life of another human being which is manifested by external
circumstances capable of proof.” OCGA § 16-5-1 (b). Malice may also
be implied “where no considerable provocation appears and where
all the circumstances of the killing show [the defendant acted with]
an abandoned and malignant heart.” Id. The malice necessary to
establish malice murder, be it express or implied, may be formed in
an instant, as long as it is present at the time of the killing. See Platt
v. State, 291 Ga. 631, 633 (732 SE2d 75) (2012). “It is for a jury to
determine from all the facts and circumstances whether a killing is
intentional and malicious.” White v. State, 287 Ga. 713, 715 (1) (b)
(699 SE2d 291) (2010) (citation and punctuation omitted).
Here, the jury heard evidence authorizing it to conclude that
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O’Neal planned with others to rob Jackson during a drug transaction
and fatally shot Jackson and left him lying on the side of the road.
O’Neal then pointed a gun at Quentin when Quentin suggested they
go to the police and warned McCabe not to drive his car because
police were looking for a car with a broken window. O’Neal,
meanwhile, avoided arrest until a few weeks after the shooting,
when he was discovered hiding in a closet with the gun used to shoot
Jackson in his possession. O’Neal initially told investigators that the
gun accidentally discharged from inside his fanny pack, a claim not
supported by the physical evidence, and at trial, he argued that
someone else shot Jackson. Based on all of the foregoing evidence,
we conclude that the evidence was sufficient to enable the jury to
find beyond a reasonable doubt that O’Neal was guilty of Jackson’s
murder. See Dupree v. State, 303 Ga. 885, 887 (1) (815 SE2d 899)
(2018) (evidence of malice murder was sufficient where the
defendant physically assaulted victim before her death and left her
to die); see also Rowland v. State, 306 Ga. 59, 65 (3) n.4 (829 SE2d
81) (2019) (Evidence of flight and related conduct is “admissible as
9
evidence of consciousness of guilt, and thus of guilt itself.” (citation
and punctuation omitted)).
(b) O’Neal also argues that the evidence was insufficient to
support his murder conviction because Quentin’s testimony was
unreliable. Any questions about the reliability of Quentin’s
statements to investigators or testimony at trial, however, were for
the jury to decide. See Smith v. State, 308 Ga. 81, 84 (1) (839 SE2d
630) (2020) (“We leave to the jury the resolution of conflicts or
inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences to be derived from the facts.”).
2. In another challenge to the sufficiency of the evidence,
O’Neal asserts that the trial court abused its discretion when it
rejected his request for a new trial on the grounds that the jury’s
verdict was contrary to the law or evidence and strongly against the
weight of the evidence. See OCGA §§ 5-5-20 (authorizing a trial
judge to grant a defendant a new trial if it concludes the verdict of
the jury is “contrary to . . . the principles of justice and equity”) and
5-5-21 (authorizing a trial judge to grant a defendant a new trial if
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it concludes the verdict of the jury is “decidedly and strongly against
the weight of the evidence”). These statutes, referred to as the
general grounds, require a trial court to exercise a “broad discretion
to sit as a ‘thirteenth juror.’” Hinton v. State, 312 Ga. 258, 262 (1) (c)
(862 SE2d 320) (2021) (citation and punctuation omitted). As an
appellate court, however, we do not independently review the
evidence as a thirteenth juror because the “decision to grant or
refuse to grant a new trial on the general grounds is vested solely in
the trial court.” Id. at 262 (1) (c) (citation and punctuation omitted).
And we “presume, in the absence of affirmative evidence to the
contrary, that the trial court did properly exercise such discretion.”
Wilson v. State, 302 Ga. 106, 108 (II) (a) (805 SE2d 98) (2017). The
trial court’s order states that after reviewing the evidence, argument
of counsel, pleadings, and filed transcripts, the trial court
determined that the jury’s verdict was not contrary to the law or
evidence and was not strongly against the weight of the evidence
presented at trial. Accordingly, the record demonstrates that the
trial court properly exercised its discretion as the thirteenth juror
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and this claim fails. See Smith v. State, 300 Ga. 532, 534 (1) (796
SE2d 671) (2017) (Because “the evidence was sufficient to support
the verdict,” the trial court did not abuse its discretion as the
“thirteenth juror” where, in its order denying the motion for new
trial, “the trial court recited it had weighed the evidence, including
the credibility of the witnesses, and found [the defendant] was not
entitled to a new trial on the general grounds[.]”).
3. O’Neal argues that the trial court erred by refusing to give a
requested charge on voluntary manslaughter as a lesser offense of
murder because the jury could have found that Jackson was shot as
a result of a sudden, irresistible passion caused by Jackson’s efforts
to retrieve his phone.
Voluntary manslaughter is the killing of another person under
circumstances that would otherwise be murder when the killer “acts
solely as the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such passion
in a reasonable person[.]” OCGA § 16-5-2 (a). A trial court is required
to grant a defendant’s request for a charge on voluntary
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manslaughter if there is any evidence, however slight, supporting
the theory of the charge. See McClain v. State, 303 Ga. 6, 9 (2) (810
SE2d 77) (2018). “It is a question of law for courts to determine
whether the defendant has presented sufficient evidence to warrant
a requested charge.” Hudson v. State, 308 Ga. 443, 445 (2) (841 SE2d
696) (2020).
This claim fails, however, because there was not even slight
evidence presented at trial of provocative conduct sufficient to
warrant the giving of a voluntary manslaughter charge. Although
there was some evidence that Jackson reached into the car to
retrieve his phone before he was shot, a voluntary manslaughter
charge is not warranted where the only evidence is that the victim
was resisting an unlawful act. See Nance v. State, 272 Ga. 217, 221
(3) (526 SE2d 560) (2000) (Charge of voluntary manslaughter was
not warranted where the only alleged evidence of provocation was
that the victim resisted an armed robbery.); Turpin v. Christenson,
269 Ga. 226, 234 (12) (A) n.6 (497 SE2d 216) (1998) (Voluntary
manslaughter charge was not warranted where the only evidence of
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provocation was a struggle between the victim and the defendant as
the victim attempted to resist an armed robbery.); see also Johnson
v. State, 313 Ga. 698, 700 (873 SE2d 123) (2022) (The victim’s
physical resistance against a defendant’s unlawful act “is not the
type of provocation which demands a voluntary manslaughter
charge.” (citation and punctuation omitted)). Accordingly, the trial
court did not err by refusing to give a charge on voluntary
manslaughter.
4. O’Neal next argues that it was error for the trial court to
instruct the jury on conspiracy because there was no evidence
showing he was a knowing participant in the planning of either the
drug transaction or the robbery.
As an initial matter, we note that the State did not charge
O’Neal with conspiracy in the indictment. It is not error, however,
for a trial court to instruct the jury on the subject of conspiracy when
the evidence tends to show a conspiracy. See Holmes v. State, 272
Ga. 517, 519 (6) (529 SE2d 879) (2000). The State may prove a
conspiracy by showing “that two or more persons tacitly came to a
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mutual understanding to . . . pursue a criminal objective.” (Citation
and punctuation omitted.) Brown v. State, 269 Ga. 67, 69 (3) (495
SE2d 289) (1998). “Where there is no evidence of an express
agreement, an inference that two or more people tacitly came to a
mutual understanding to commit a crime can be drawn from the
nature of the acts done, the relation of the parties, the interest of the
alleged conspirators, and other circumstances.” Brown v. State, 304
Ga. 435, 441 (3) (819 SE2d 14) (2018) (citation and punctuation
omitted). And “[i]t is well established that presence, companionship
and conduct [that discloses a common design] before and after the
offense are circumstances which may give rise to the existence of a
conspiracy.” Turner v. State, 275 Ga. 343, 345 (2) (566 SE2d 676)
(2002).
Here, the evidence was sufficient to support the inference that
O’Neal and at least one of the other men in the car had a mutual, if
only tacit, agreement to lure Jackson to meet with them under the
guise of a drug transaction and then rob Jackson of his money and/or
phone. In light of this evidence, it was not error for the trial court to
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charge the jury on conspiracy. See id. at 345 (2) (Evidence that the
defendant and another man drove the victim to the scene of the
crimes and were together in the hours after the crimes and the other
man was found in possession of one of the weapons used to shoot the
victim and gave a false name to police and fled when approached by
police was sufficient to support the State’s claim that the two men
were involved in a conspiracy.); see also Drane v. State, 265 Ga. 255,
258 (4) (455 SE2d 27) (1995) (Evidence that the defendant and
another man picked up the victim together, concealed evidence, and
disposed of the body was sufficient to support an inference of an
understanding between the men to murder the victim.).
5. O’Neal also asserts that he received ineffective assistance of
counsel based on counsel’s failure to: (a) object to a comment made
by the prosecutor during closing argument; and (b) more vehemently
object to the State’s request for a charge on conspiracy.
In order to establish constitutionally ineffective assistance of
counsel, a defendant must show that his counsel’s performance was
professionally deficient and that, but for such deficient performance,
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there is a reasonable probability that the result of the trial would
have been different. See Strickland v. Washington, 466 U. S. 668
(III) (104 SCt 2052, 80 LE2d 674) (1984). If the defendant fails to
satisfy either prong of the Strickland test, this Court is not required
to examine the other. See Green v. State, 291 Ga. 579, 580 (2) (731
SE2d 359) (2012). With these principles in mind, we review O’Neal’s
claims of ineffective assistance.
(a) O’Neal first alleges that his trial counsel rendered
ineffective assistance by failing to object when, during the State’s
closing argument, the prosecutor commented that O’Neal “was
unable to tell you the truth of what happened to Joey Jackson.”3 He
3 During this portion of the closing arguments, the prosecutor stated the
following:
And finally, I want to talk to you about Joey Jackson, who I haven’t
really talked about much at all since our first day of trial. This
defendant is now older than Joey Jackson was at the time that he
was murdered. And what Joey Jackson deserves from his
community is justice. And that’s what his family deserves as well.
And justice isn’t 66 percent justice or two-thirds justice. Justice is
everybody who participated and played a role is held responsible.
And the defendant was unable to tell you the truth of what
happened to Joey Jackson. . . . But you have enough evidence,
circumstantial and direct, to tell the truth about what happened
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argues that although the prosecutor may have been referencing
O’Neal’s initial statement in which he claimed the gun accidentally
discharged while inside his fanny pack, it could have been construed
by jurors as an improper comment on O’Neal’s choice not to testify
at trial.
We disagree. The challenged comment followed the
prosecutor’s summary of the evidence and was part of the State’s
argument that the jurors had the opportunity to “speak the truth”
for Jackson by rendering a verdict of guilty. In this context, the
prosecutor’s comment could reasonably be understood as
highlighting the falsity of the statements O’Neal actually made to
investigators following his arrest and did not directly or necessarily
implicate O’Neal’s decision not to testify at trial. See Smith v. State,
279 Ga. 48, 49 (2) (610 SE2d 26) (2005) (Comments made by the
prosecutor regarding a defendant’s decision not to testify may
constitute reversible error if “(1) the prosecutor’s manifest intention
to Joey Jackson. And the truth is that this defendant is guilty of
participating in his murder.
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was to comment on the accused’s failure to testify, or (2) the remark
was of such a character that a jury would naturally and necessarily
take it to be a comment on the accused’s failure to testify.” (citation
omitted)). Under these circumstances, any objection by trial counsel
to the prosecutor’s comment would have been without merit, and
counsel’s failure to object did not amount to ineffective assistance.
See Jackson v. State, 306 Ga. 475, 479 (4) (a) (831 SE2d 755) (2019);
Wellons v. State, 266 Ga. 77, 85-86 (10) (463 SE2d 868) (1995).
(b) O’Neal also argues that trial counsel rendered ineffective
assistance by failing to adequately object to the State’s request for a
conspiracy charge. For the reasons explained in Division 4 above,
there was sufficient evidence of a conspiracy presented at trial to
support the giving of a charge on conspiracy. Accordingly, trial
counsel’s failure to object more vehemently to the giving of such
charge would have been meritless and does not amount to ineffective
assistance. See Jackson, supra, 306 Ga. at 479 (4) (a).
6. Finally, we reject O’Neal’s argument that the cumulative
effect of the alleged errors so undermined his trial that a just result
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was not possible. In considering a claim of cumulative error, we
“evaluate only the effects of matters determined to be error, not the
cumulative effect of non-errors.” (Citation and punctuation omitted.)
Bulloch v. State, 293 Ga. 179, 183 (2) (744 SE2d 763) (2013). As
explained above, O’Neal has failed to show that the trial court erred
in its instructions to the jury or that his trial counsel was
professionally deficient in the manners alleged. Therefore, none of
O’Neal’s claims of error have succeeded, there are no errors to
aggregate, and his claim of cumulative error also fails. See Chapman
v. State, 290 Ga. 631, 635-636 (2) (e) (724 SE2d 391) (2012).
Judgment affirmed. All the Justices concur.
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